28 September 2011

Last week I went along to OpenForum Europe,
where I had been invited to give a short talk as part of a panel on
“Tackling “Societal Challenges” through Openness”. Despite my
attendance, the conference had some impressive speakers, including the
European Commission's Neelie Kroes and Google's Hal Varian.

27 September 2011

The Pirate Party has hovered on the edge of politics for a while now,
acting as a kind of gadfly to traditional parties - annoying but not
able to inflict much damage. Its seats in the European Parliament have
proved important in terms of raising issues and obtaining access to
hitherto restricted information. But last week's events in Germany are perhaps even more significant:

23 September 2011

It has been a recurrent theme of these pages that the UK government
is miles behind other administrations when it comes to adopting open
source. Recently, we have had some encouraging words on the subject -
but no buttered parsnips as yet.

We need a campaign to get this really moving, but you can't have a
campaign without some catchy slogan (or a good #hashtag). I think Mark
Taylor, that open source stalwart, has just come up with both as part of
a throwaway tweet:

OSS Please!

This sums up brilliant what we want, and does it memorably and
politely - a kind of more positive "Atomkraft? Nein Danke", updated for
the 21st century. Now all we need is a logo...

21 September 2011

I've written a number of pieces about the inherent flaws of patents,
especially in the field of software. Those are mostly to do with how
the good intentions of patents are not realised. But alongside those
who try to use patents as they were supposedly intended are another
group who are essentially parasites - those who seek to game the system,
and extract money from its weaknesses: the patent trolls.

Aside from the patent trolls themselves, few have a good word for
them, since it's pretty obvious to everyone that they suck money out of
companies that make stuff, and thus act as a brake on real innovation.
But those feelings have been largely unquantified. Now, thanks to recent work of the authors of the seminal book “Patent Failure”,
James Bessen and Michael Meurer, along with a third author, Jennifer
Laurissa Ford, we have perhaps the first rigorous estimate of the damage
they cause. It's even worse than we thought:

19 September 2011

A couple of weeks ago, I wrote about the “Making Data Real”consultation,
promising to post my response. I have to admit that replying to the
questions it asks has been far harder for this than for any other
consultation that I've responded to.

I should hasten to add that this is not from any failing in the
consultation itself. Indeed, it is commendably thorough both in its
exposition of the issues, and in terms of the questions posed. But
that's almost the problem: it is asking very deep questions in an area
where few people - myself included - have really managed to frame
anything like coherent responses.

13 September 2011

The ideas that "copyright theft" is widespread, and that people are "stealing" digital content from creators, are favourite tropes of the copyright maximalists. It's total rubbish, of course. The law clearly states that if it is anything it is copyright infringement, and simple logic tells us that digital copies aren't stealing, because they do not take away, but add.

Yes, there is a question of whether that unauthorised duplication leads to a loss of revenue, but the answer is by no means as clear-cut as people would have you believe. A range of studies shows that such sharing actually boosts sales, acting as unofficial - and free - marketing.

That's why I've long been advocating independent research into this area - after all, if the copyright industries are so sure that file sharing is leading to revenue loss, what have they to fear from objective research into this area? And yet strangely they seem reluctant even to countenance the idea.

But whatever your views on that particular issue, it seems likely that the following will only exacerbate the problem [.pdf]:

The [European] Council today adopted by qualified majority a directive extending the term of protection of the rights of performers and phonogram producers on music recordings within the EU from 50 to 70 years.

What this means, in practical terms, is that there is very little chance that I - or any of my more musical contemporaries - will ever be able to use today's music recordings to create new works. As with the other media, contemporary recorded music will live in a closed, antiseptic bubble that no one is allowed to penetrate for nearly a hundred years or so.

That's all very distant and theoretical; it's hard to see what the problem is, perhas. So let's look a little more closely at what has happened here by imagining a strange parallel world, remarkable like our own until yesterday, when the following happened:

The [European] Council Council today adopted by qualified majority a directive reducing the term of protection of the rights of performers and phonogram producers on music recordings within the EU from 50 to 30 years.

As you can see, this is almost exactly the same as our world, with the very minor difference that the copyright term for music recordings was reduced by 20 years, instead of being increased. Pretty minor, you might think - after all, what's 20 years plus or minus? If it can be increased, it can be decreased, no?

But in that parallel world, imagine the howls of anger and pain that would be issuing forth from the music industry at this outrageous and unjustified appropriation of their rightful dues. Musicians would be marching in the streets, and the companies that live off them would be lobbying as never before to get this terrible result reversed.

Luckily for them, that was in a parallel world. But thanks to the symmetry of copyright - that it represents a bargain between creators and the public, with grants of a temporary monopoly to the former in return for the passage into the public domain of the work after that monopoly has expired - that very same expropriation has taken place - from you, me and everyone that goes to make up that nebulous "public". The only really difference is that no one is marching in the streets to reverse it.

When the musicians recorded their songs, the deal was that they would receive copyright for 50 years (or maybe less, depending on when they recorded it). In return for that 50 years, they agreed that the public domain would be enriched so that we, the public, could do as we wished with that music.

That compact, freely entered into by both sides, has just been broken. The recordings will no longer enter the public domain on the agreed date; instead, we must wait yet another 20 years. In effect, then, we have had 20 years public domain use stolen from us, since nothing was given in return for this sudden loss.

There can be no quibbling here about whether this is really theft, because something we had before has been taken away without our permission. Yes, the European Council may theoretically be acting in our name, but I don't remember being asked at any point whether I agreed to this. The fact is that the Council acted unilaterally, at the behest of the music industry that wanted something for nothing - not because we, the public, were begging politicians to change the law in this way and to make us poorer than we were before.

This is what *real* copyright theft looks like: the stealing from the public by yet another unjustified and undemocratic extension of copyright.

It's no secret that businesses built around open source tend to
favour one model in particular - that involving dual licensing. The
basic idea is simple.

A company acquires the copyright of the main codebase, which might
begin life as a small-scale, single-coder project, and is then “taken
commercial” thanks to a little greasing of palms (providing a
well-earned payback for all those hours of lonely coding.)

12 September 2011

As regular readers of this column will know, one of the key issues for
open source - and openness in general - is what is meant by open
standards. Too loose a definition basically allows the other kinds of
openness to be undermined from within the citadel.

09 September 2011

I frequently cover the subject of copyright on this blog because
increasingly it is impacting the lives of readers, both as individuals
and as people working in companies, in an adverse way. But these
problems of accessing texts, say, are even greater for a particular
subset of readers: those who are visually impaired.

I am sure that everyone reading this blog who is not visually
impaired would agree that this group of people deserves extra
consideration to help them overcome any obstacles that get in the way of
accessing information - so vital in the modern world. In a humane
society, then, our political representatives would bend over backwards
to aid this and similar groups through legislation and treaties designed
to make things at least a little easier.

We do not live in that world, and the following disgraceful copyright saga is the proof.

08 September 2011

I've never written an obituary before in these pages. Happily,
that's because the people who are driving the new wave of openness are
relatively young, and still very much alive. Sadly, one of the earliest
pioneers, Michael Hart, was somewhat older, and died on Tuesday at the age of just 64.

What makes his death particularly tragic is that his name is probably
only vaguely known, even to people familiar with the areas he devoted
his life to: free etexts and the public domain. In part, that was
because he modest, content with only the barest recognition of his huge
achievements. It was also because he was so far ahead of his times that
there was an unfortunate disconnect between him and the later
generation that built on his trailblazing early work.

07 September 2011

OpenCourseWare - putting texts and videos of educational lectures online for anyone to download, use and often build on - is a great idea. But it's still a case of knowledge being handed down from on high by the university priesthood. What about if anyone could upload lectures they have attended?

Welcome to LectureLeaks.org, your personal OpenCourseWare repository.
You can now record, save, and upload your college lectures directly
from your iPhone or Android device. You can also browse our library
of recordings and learn any time, anywhere.

We believe that higher education should be available to all, for the
good of society. Anybody who wants to learn should be able to, so
we're trying to develop technology which allows that.

Begin recording by pressing Record during all of your lectures, then
upload them to us so we can share them with the rest of the world.

Before sharing any recordings, we encourage you to ask your
instructor's permission. We are affirmative for open access
education, but we also maintain full compliance with the Digital Millenium Copyright Act.

All recordings are released under the Creative-Commons Attribution
license, and our server doesn't record any personally identifying
information like IP addresses.
LectureLeaks is a 100% Free and Open Source Project, and uses
technology produced by the OpenWatch Project.

Only you can spread knowledge from the privileged few to curious minds
everywhere, one lecture at a time.

06 September 2011

There are lots of ways to get music from me, whether you’re a cyborg
from the future with an iPod in your skull, or a little old granny in
Idaho with nothing but an antique “CD Player.” Lots of it is freely
available depending on how technical you are – you can get all of it for
free if you really try. But please remember I do make a living this
way, so if you like what you hear I’d certainly appreciate you throwing a
little payment or donation my way. If you can’t afford it, for goodness
sake please send copies of everything to all of your friends.

Wow - kudos to Jonathon Coulton for being such a wonderful example of what it means to be a musician in the 21st century. Long may he prosper.

05 September 2011

My last post might have seemed slightly over the top - and indeed was meant to be. After all, it's not as if the US really wants to subvert the entire edifice of European civil liberties simply to sell a few more albums and films, is it?

Well, those cables have delivered again, and suggested that is *precisely* what is going on here:

Among the treasure troves of recently released WikiLeaks cables, we find one whose significance has bypassed Swedish media. In short: every law proposal, every ordinance, and every governmental report hostile to the net, youth, and civil liberties here in Sweden in recent years have been commissioned by the US government and industry interests.

I can understand that the significance has been missed, because it
takes a whole lot of knowledge in this domain to recognize the topics
discussed. When you do, however, you realize that the cable lists orders
for the Swedish Government to implement a series of measures that
significantly weakens Sweden’s competitive advantage in the IT field
against the US. We had concluded this was the case, but had believed
things had come from a large number of different sources. That was
wrong. It was all coordinated, and the Swedish Government had received a
checklist to tick off. The Government is described in the cables as
“fully on board”.

Since 2006, the Pirate Party has claimed that traffic data retention (trafikdatalagring), the expansion of police powers (polismetodutredningen), the law proposal that attempted to introduce Three Strikes (Renforsutredningen),
the political trial against and persecution of The Pirate Bay, the new
rights for the copyright industry to get subscriber data from ISPs (Ipred) — a power that even the Police don’t have — and the general wiretapping law (FRA-lagen) all have been part of a greater whole, a whole controlled by American interests.
It has sounded quite a bit like Conspiracies ’R’ Us. Nutjobby. We have
said that the American government is pushing for a systematic
dismantlement of civil liberties in Europe and elsewhere to not risk the
dominance of American industry interests, in particular in the area of
copyright and patent monopolies.

But all of a sudden, there it was, in black on white.

It's a long post, from the indefatigable Rick Falkvinge, but I really urge you to read it, because it lays out in extraordinary detail how the US has pushed Sweden to meet six demands that will be all-too-familiar to readers of this blog:

Adopt “Three Strikes” making it possible to disconnect prople from the internet without a trial (“injunctive relief“), and implement the IPRED directive
in a way that the copyright industry can get internet subscriber
identities behind IP addresses (which was not mandatory, my note).

Prosecute to the fullest extent the owners of The Pirate Bay. (This
doesn’t really need translation, except that it’s very noteworthy that
the executive branch is ordered to interfere with the work of the
judicial one, which is illegal in Sweden too.)

Transfer scarce police resources from investigating real crimes and
devote them to safeguarding American monopolistic interests against
ordinary citizens.

Take large-scale initiatives against people sharing music, movies and porn.

Make it possible for the copyright industry to sue people (“pursue new civil remedies“) with a minimum of hassle.

Abolish the messenger immunity, making Internet Service Providers
liable for copyright monopoly infractions happening in their wires, and
force them to interfere with the traffic.

That is, the US has been driving the entire copyright legislation programme for Sweden. And it would be remarkable if it had not made exactly the same demands to every other European country - indeed, we know from previous leaks that it has, at least for some of them.

In the face of this incontrovertible evidence that European governments have been abjectly serving the US government and copyright industries, not their own electorates, we must make sure that they are forced to explain this almost unbelievable betrayal of the political system that elected them, and must not allow them to pretend that nothing has happened, and that it is business as usual.

It would be nice to think that this final flood of cables from Wikileaks will clean Europe's Augean stables of all this stinking political manure, but I'm not holding my breath - just my nose....

The leaked US cables will clearly provide a rich vein to be mined for many months to come. I don't really have the time to go digging down there, so I was grateful that @airvpm alerted me to this particular gem from 2009.

The context is "European privacy and data protection concerns" and the tendency of those concerns to get in the way of more important issues - like making obscene profits, ensuring that people can be tortured without any of that tiresome oversight business, and generally propping up the decaying US global hegemony through any means:

The Commission has failed to exercise a strong policy
leadership role vis-a-vis other EU institutions. In this vacuum,
the European Data Protection Supervisor and the Article 29 Working
Party have asserted expansive roles. These bodies regularly make
high-profile public statements on areas outside of their formal
competence (including the HLCG and Third Pillar issues). Their
interpretations of legislation tend to give primacy to civil
liberties-based approaches for the EU's Single Market, consumers, or
law enforcement, and have gone largely unchallenged by the
Commission.

So the Euro-trash Data Protection Supervisor and the Article 29 Working
Party tasked with protecting privacy in the EU have dared to assert themselves and stand up for European citizens by giving "primacy to civil liberties-based approaches for the EU's Single Market, consumers, or law enforcement", while the US's official lapdog in Yurop, the European Commission, has somehow failed to smack them down.

Can you believe it? I do hope we haven't hurt the feelings of our lords and masters in Washington...

One of the most important recent pieces of research to appear in the field of copyright and its enforcement was "Media Piracy in Emerging Economies". If you haven't read it, please do so now - I'll wait...

The author of that study, Joe Karaganis, has now penned perhaps the best short explanation of why Europe's policy on strong enforcement of copyright does not make economic sense:

where do the EU’s economic interests lie? Let’s look at the numbers:

*** According to the World Bank, Europe’s
audiovisual imports exceed its exports by a ratio of around 4-1. In
2008, Europe (EU 27) imported roughly $14.7 billion in audiovisual and
related services (basically, licenses for movies, TV, radio, and sound
recording). In contrast, it exported about $3.9 billion, for a net
trade deficit of $10.8 billion (International Trade Statistics 2010: 156).

*** About 56% of those imports ($8.35 billion) come
from the US. The EU, in turn, exports about $1.7 billion to the US,
resulting in a net negative trade balance of around $6.65 billion. This
does not include software licenses, where US companies monopolize
larger parts of the European consumer and business markets.

*** The US, in contrast, is a large net exporter of
audiovisual goods, with roughly $13.6 billion in exports and $1.9
billion in imports.

Therefore:

For countries or regions that are net importers of copyrighted goods,
higher IP standards and stronger enforcement will result in increased
payments to foreign rights holders. Because the US thoroughly dominates
European audiovisual markets, stronger enforcement in these areas is,
in practice, enforcement on behalf of Hollywood.

So pirating of US audiovisual products actually reduces the outflow of money from the European economy. Ah, yes, the industry pundits will retort, but what about the loss of revenue due to pirating of copyright works that circulate purely within the EU?

Domestic piracy may well impose losses on specific industrial sectors, but these are not losses to the larger national economy. Within a given country [or in this case, region], the piracy of domestic goods is a transfer of income, not a loss. Money saved by consumers or businesses on CDs, DVDs, or software will not disappear but rather be spent on other things—housing, food, other entertainment, other business expenses, and so on. These expenditures, in turn, will generate tax revenue, new jobs, infrastructural investments, and the range of other goods that are typically cited in the loss column of industry analyses. To make a case for national economic harms rather than narrower sectoral ones, the potential uses of lost revenue need to be compared: the foregone investment in the affected industries needs to represent a better potential economic outcome than the consumer surplus generated by piracy (Sanchez 2008). The net impact on the economy, properly understood, is the difference between the value of the two investments. Such comparisons lead into very complicated territory as marginal investments in different industries generate different contributions to growth and productivity. There has been no serious analysis of this issue, however, because the industry studies have ignored the consumer surplus, maintaining the fiction that domestic piracy represents an undiluted national economic loss.

For our part, we take seriously the possibility that the consumer surplus from piracy might be more productive, socially valuable, and/or job creating than additional investment in the software and media sectors. We think this likelihood increases in markets for entertainment goods, which contribute to growth but add little to productivity, and still further in countries that import most of their audiovisual goods and software—in short, virtually everywhere outside the United States.

This is a point I've made elsewhere, and which is almost universally overlooked in analyses of the economic impact of piracy.

The paper then provides a fascinating analysis of one particular industry, that of films. It looks at what films are made in which countries, and who really benefits. Not surprisingly, it reveals that the European film industry is completely in thrall to Hollywood, and it is this that is guiding copyright policy in Europe:

It’s this junior partnership that should be weighed against the
wider sacrifices of privacy and freedom of speech built into so many
recent national and EC-level IP enforcement policies, such as the French
’3-strikes’ plan, which will cut French citizens off of the Internet
for the piracy of Hollywood productions. Strong enforcement reinforces
status quo positions in the market, but at an escalating public cost as
consumer behavior becomes the real focus of enforcement activities.
There is nothing in these policies will alter the balance of cultural
power or change the direction of payments. That’s why I’ve
characterized the EC enforcement plan as: “send money to the US.”

Moralizing IP rhetoric is also a handicap in this context.
Continuing to defend IP as a fundamental right long after it has been
made an object of trade policy is to surrender any real leverage in
making deals. A trade negotiator would be very lucky have such a
partner on the other side of the table.

And that's precisely what the US has in Europe, not least thanks to Sarkozy, who has been the main proponent of Europe's counterproductive copyright infringement agenda. The key statement of that topsy-turvy policy was made by him during the global joke known as the e-G8 meeting:

I know and understand that our french conception of author’s rights isn’t the same as in the United States or other countries. I simply want to say that we hold to the universal principles proclaimed in the American constitution as much as in the Declaration of the Rights of Man in 1789: that no one should have the product of their ideas, work, imagination–their intellectual property–expropriated with impunity.

Each of you understands what I say here because each of you is also a creator, and it is in virtue of these creator’s rights that you have founded businesses that today have become empires. The algorithms that give you your strength; this constant innovation that is your force; this technology that changes the world is your property, and nobody contests it. Each of you, each of us, can thus understand that the writer, the director, or the performer can have the same rights. – French President Sarkozy, opening the ‘e-G8? conference that he convened this past April.

As Karaganis points out:

With this fulsome praise of tech and media CEOs at the e-G8, Sarkozy
expressed the basic European cognitive dissonance on IP: the embrace of
universal rights as a way of pretending equality with the real powers
in the room.

The rest of his piece looks at how Europe ended up in this position where it would be arguing strenuously for an approach that was against its own best interests. As such, it provides invaluable context for today's moves, and should be read by anyone wanting to understand them - and to counter them.

[Google Translate: The Foreign Ministry said that France does not wish to sign a UN declaration favorable to the defense of human rights on the Internet until there is no consensus on the fact that freedom expression and communication does not take precedence over other rights, including intellectual property.]

And in case you were wondering what that might mean, here it is spelled out:

[Google Translate: Because the government has an easy to remember that "freedom, respect for privacy and intellectual property" rights are all at the same level, and that "France considers that it should not be a hierarchy between these rights. "]

That is, Sarkozy believes that the right to an intellectual monopoly - the right to *exclude* people from knowledge - is absolutely equal to the fundamental right to freedom.

This is a sad come-down for a nation whose modern origins were based on the idea of freedom in contradistinction to the privilege and oppression of the Ancien Régime it replaced. It also runs completely counter to France's interests.

After all, it is no secret that French language and culture are in steep decline from their former positions of global leadership. Indeed, France spends considerable amounts of money promoting "Francophonie" in an attempt to halt the slide.

The worst thing the French government can do would be to make it *harder* to access French culture in the form of literature, music, films, etc through increasingly punitive enforcement of outdated copyright laws. Instead, it should be encouraging all the relevant industries to make their wares available as widely as possible - if necessary through subsidies.

And yet Sarkozy seems to regard supporting his fat-cat chums in the copyright industries as more important than truly helping the broader culture French culture, or even - heaven forfend - supporting universal ideals like freedom.

01 September 2011

As I indicated yesterday, I have serious doubts about the UK government's policy on copyright. But while that has been something of a disappointment to me - I naively hoped for better - its work on open data, by contrast, has exceeded my expectations.

It has already made a number of important moves in this area, and with a major new consultation - bearing the rather splendid title “Making Open Data Real” - it looks like it intends to move further toward openness in this area. Not only that, but is actually asking for our views on many aspects. This is quite unlike its approach for copyright enforcement, where it is trying to push through all kinds of stupidities and hope that no one notices, so I suppose we should be grateful for small mercies.

The "copyright levy" - typically a charge levied on blank recording media such as audio tapes, CDs and DVDs - is a total anachronism. If it ever had a justification - and I don't believe it did - it was that once upon a time the only content that existed came from "professionals"; if you were making a copy of a song or a video, it was, almost by definition, made by somebody else, and so, the argument went, you "ought" to be paying for something for it, since it might be an "unauthorised" copy.

Of course, the big flaw in this approach was that by demanding (and often obtaining) such a levy, the copyright industries lost their right to complain about those "unauthorised" copies. After all, they were being paid for them, just not through the traditional outlets.

But of course, greedy little things that they are, the copyright companies wanted their proverbial cake and to eat it; and so it has arrived at the ridiculous situation that in many countries they get the levy and still have the cheek to push for ever-more punitive action against that "unauthorised" sharing.

Today, of course, even that supposed logic about paying for unauthorised copies through a levy on recorded media doesn't really hold. We have entered an era of democratised creation, where most people in the West, and many elsewhere, have started taking photos and making videos. This means that an increasingly large proportion of the digital files stored on those blank media are probably yours, and have nothing to do with "professionals". So at the very least that copyright levy, where it exists, should be progressively reduced to reflect that new situation.

But that's not what's happening. Indeed, some not only expect to receive those old levies as a right, but want more:

The copyright industry never seems to have had enough. Starting today in Sweden, they demand a private tax for external hard drives and USB memory sticks.

The tax they demand is about 9 euros for an external hard drive, or 10 eurocents per gigabyte for USB memory sticks. They have previously demanded a tax for cassette tapes, which was how this private taxation right started, and gradually expanded it to blank CDs and DVDs, as well as media players with built-in hard drives. Yes, that includes the latest game consoles — Swedish kids pay about 15% tax to the copyright industry on a Playstation 3.

This is entitlement at its most blatant, and it's time to put a stop to it. Assuming that doesn't happen (after all, if the copyright industries lose this source of income, how will theypay for all the fat cats' salaries?), the quid pro quo should obviously be for those industries not only to drop their calls for punitive copyright enforcement, but to accept, publicly, that these levies actually give the public a right to make copies and to share them.

About Me

I have been a technology journalist and consultant for 30 years, covering
the Internet since March 1994, and the free software world since 1995.

One early feature I wrote was for Wired in 1997:
The Greatest OS that (N)ever Was.
My most recent books are Rebel Code: Linux and the Open Source Revolution, and Digital Code of Life: How Bioinformatics is Revolutionizing Science, Medicine and Business.